In the spring Theresa May called a general election she didn’t have to call, because she thought it would consolidate her power. She needs to be in control of things. She miscalculated, and lost her overall majority. She shored it up again with a hefty bung to a Northern Ireland party mainly known, on this side of the water, for its bigotry. She doesn’t really care, as long as she hangs on.
Now the selection of MPs to sit on a little-known House of Commons committee is due. It has nine members. Before it was dissolved prior to the general election, five of these were Conservative, three Labour and one SNP. The numbers at the time reflected a Conservative majority. The Conservatives no longer have a majority. They are clinging to power thanks to their grubby deal with the DUP. Obviously the composition of the new Committee must take account of this. Mustn’t it?
But Theresa May needs to be in control.
The obscure committee whose membership comes up for consideration this month is the Committee of Selection. It does what its name implies. It nominates the MPs who will sit on the House of Commons select and standing committees. Commons committees review Government legislation and they are powerful. One of them, I notice, is the Committee on Statutory Instruments. It is in its remit to “draw to the special attention of the House” any Statutory Instrument as to which “there appears to be doubt about whether there is power to make it,” or that “its drafting appears to be defective.”
A statutory instrument is secondary or delegated legislation (an Act of Parliament is primary legislation), and it offers Government a quick means of getting business through the House: there is less debate, less scrutiny. Statutory instruments are not very democratic but, as the former Lord Chief Justice, Lord Judge, remarks in an outspoken lecture, Ceding Power to the Executive (2016),1 it is not in the interests of democracy to get clogged up with matters like the height of pavements, either.
But now we have Brexit, a very tight time-frame and an obsessionally-controlling Prime Minister. And a Bill has come before the House for its second reading which, short of a declaration of war, could not be more important. It is the European Union (Withdrawal) Bill, otherwise known as the Repeal Bill, of which the first clause is, “The European Communities Act 1972 is repealed on exit day.”
This repeal will drop the UK into a legal abyss, because it renders null all EU legislation which is incorporated into British law, and there is very great deal of it. The remainder of the Bill is therefore devoted to closing up the abyss. The first step is to transfer or copy all the relevant EU law into UK law. Roughly half the Bill is taken up with detailing how this is to be done (it is complicated; there are many categories of EU legislation and they have been incorporated into, or given effect in, British law in different ways).
The problem then arises that much of the transferred law will not work, because it is linked to an EU institution with which the UK no longer has a relationship. Means have to be found, therefore, of amending the “deficient” law so that it continues to be workable. This will be done through statutory instruments. They will allow ministers to alter the legislation to make it fit for purpose, without trying to push an enormous number of new Bills through Parliament.
There are two types of procedure for doing this: in the Affirmative procedure, both Houses must approve the statutory instrument; in the Negative procedure, it becomes law without a debate or vote, but it may be annulled by a Resolution of either House (however, this has not happened since 1979). Parliament cannot amend an S.I.
The Repeal Bill sets out which categories of legislation will be subject to the Affirmative procedure and which to the Negative. This sounds obscure but it matters very much: over the “Negative” regulations, which are not debated or voted on, Parliament will have almost no control. They are known as “Henry VIII powers.” It appears that most of the legislation will be of this kind. The Bill thus hands discretion and control to Government ministers over a vast quantity of law-making.
It is estimated that about 1,000 S.I.s will need to be created. A major revolt, which may include some Tory MPs, is brewing over the Bill, which comes to the vote on Monday night (September 11). There is a shocking discrepancy between, on the one hand, the task the Government has set itself and the means that would be appropriate to performing that task (full debate in both Houses), and the means the Government is actually proposing to use. Statutory instruments are very well suited to determining the height of pavements: they are not suited to determining workers’ or consumers’ rights, or overturning or curtailing major legislation formerly passed under full legal safeguards by the EU and incorporated by Act of Parliament into British law.
The Government is relying on the fact that the “Henry VIII powers” are unchallenged. The name has been much bandied about; it makes picturesque a dry and difficult subject, and it is, in its peculiar way, convincing. We all know what kind of monarch Henry VIII was, and when we read that a Henry VIII clause is one which enables the Government to repeal or amend an Act of Parliament through secondary legislation, with little or no Parliamentary scrutiny, we are not a bit surprised. An Act that Proclamations made by the King shall be obeyed was the no-nonsense title of Thomas Cromwell’s Bill put before the Commons in 1539.
Well, that’s that, then, one might conclude. We should have got rid of the things by now, of course, but we don’t always remember to throw out the rubbish. It’s part of being British.
We did throw it out, actually. The Act was repealed immediately after Henry’s death in 1547. In any case, an admirably robust Commons amended it to such an extent that by the time it came before the Lords it merely gave statutory force to matters which already fell within the royal prerogative. “What we call Henry VIII clauses were no such thing,” says Lord Judge in his 2016 lecture. “They were no more than a wish list. The King’s proclamation could not change existing laws, in particular could not alter any Act of Parliament.” (My italics.)
So why are we stuck with them? Lord Judge does not answer this, and perhaps the answer lies in the national psyche. They survived in the woodwork, but for centuries were used with extreme caution. Then suddenly, in the 20th century, something changed. “What was once a small stream of delegated legislation in 1929,” says Lord Judge, “has become an inundation. Since 1950… some 170,000 statutory instruments … have been laid before Parliament. In that time 17 have been rejected by one or other House… It is one in ten thousand, 0.01%… It is difficult to avoid the conclusion that the Parliamentary processes are virtually habituated to approve them.”
S.I.s have become a flood because they are so extremely convenient to Government. This is not just a power-grab, although it is that as well. It’s that there isn’t enough time. Many S.I.s come before House committees rather than the Chamber, but the committees don’t have enough time, either. “If [the Commons] worked twenty-four hours a day for every day of the year there would still not be enough time” (Lord Judge).
Thus, Brexit has landed us with yet another intolerable trade-off. This one is between time and democracy. “There is no alternative to a Repeal Bill if the Government plans to deliver Brexit”, says Joelle Brogan in a blog for the LSE website.2 “However, the expediency of the Henry VIII powers … to remedy and prevent ‘deficiencies’ in the law …does not and never should be to the sacrifice of individual rights and the rule of law.”
Individual rights go to the heart of it, for many objectors to the Bill. Corbyn focuses on workers’ rights such as paid leave, health and safety protections and parental leave. More than 70 NGOs, trades unions and charities, including Amnesty, Liberty and the Friends of the Earth, have joined a formal alliance to scrutinise the Bill. The environment is felt to be particularly at risk (Defra estimates that 80% of its activities are affected by EU law).
Many MPs are angry, too, that the Bill explicitly denies any role to the EU Charter of Fundamental Rights, a removal which “substantively weakens the protection of rights in the UK,” says Joelle Grogan. And there are the devolved administrations, to which the Bill devotes much attention (basically, it tells them there is nothing they can do about it). Many powers which will be “repatriated” from Brussels by the Bill are devolved powers, but the Bill will not return them to the devolved administrations, it will return them to Westminster.
The battle in the Commons is under way. David Davis has reassured critics that important legislation will be debated. He points out the sunset clause of two years on the Henry VIII powers. He demands that MPs “respect the will of the people.”
Meanwhile Amber Rudd, Leader of the House, has tabled a motion that would ensure the Government has a majority on all standing committees. It proposes to change the rules so that “where a committee has an odd number of members, the Government shall have a majority.” This would effectively get around the Committee of Selection and make sure the Government’s legislation on Brexit could not be challenged by any of the Parliamentary committees.
It is reported in the Independent (September 9) that this plan was hatched immediately after May’s failure to get a majority at the general election, and that the DUP’s support for it was secretly agreed as part of the DUP deal with the Government.
The motion comes up for a vote on Tuesday evening.